Salvana v. New York State Department of Corrections and Community Supervision et al

Filing 108

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff's motion for summary judgment (Dkt. No. 93 ) is DENIED. It is further ORDERED that Defendants' motion for summary judgment (Dkt. No. 92 ) is GRANTED and Plaintiff's amended complaint (Dkt. No. 38 ) is DISMISSED. It is further ORDERED that the Clerk is directed to close this case. Signed by Chief Judge Brenda K. Sannes on 3/6/2025. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL F. SALVANA, M.D.,
Plaintiff,
v.
JOHN MORLEY, M.D., DAVID S. DINELLO, M.D.,
PATRICIA HENDERSON, R.N., and BETTY M.
PARKMOND, R.N.,
Defendants.
Appearances:
For Plaintiff:
Carlo Alexandre C. de Oliveira
Cooper Erving & Savage LLP
20 Corporate Woods Boulevard, Suite 501
Albany, NY 12211
Richard Condit
Andrea Forsee
Mehri & Skalet, PLLC
2000 K Street, NW, Suite 325
Washington, DC 20006
For Defendants:
Letitia James
New York State Attorney General
Jorge A. Rodriguez
Assistant Attorney General, Of Counsel
The Capitol
Albany, NY 12224

5:21-cv-00735 (BKS/ML)

Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Michael F. Salvana, M.D., a former Clinical Physician and Facility Health

Services Director with the New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this action against DOCCS Deputy Commissioner and Chief
Medical Officer John Morley, M.D.; Regional Medical Director for Elmira and Oneida “HUBS”
David S. Dinello, M.D.; DOCCS Deputy Superintendent for Health Services Patricia Henderson,
R.N.; and DOCCS Nurse Director Betty M. Parkmond, R.N. (Dkt. No. 38, ¶¶ 6, 13-16, 19, 28). 1
Plaintiff raises a First Amendment retaliation claim under 42 U.S.C. § 1983. (Id. ¶¶ 171–83).
Presently before the Court are Defendants’ motion for summary judgment (Dkt. No. 92)
and Plaintiff’s motion for summary judgment (Dkt. No. 93), both filed pursuant to Rule 56 of the
Federal Rules of Civil Procedure. Each motion is fully briefed, (Dkt. Nos. 92-9, 93-34, 98-3, 99,
101, 102, 105, 106). The Court heard oral argument on the motions on March 4, 2025. For the
reasons that follow, Defendants’ motion is granted and Plaintiff’s motion is denied.
II.

FACTS 2
A.

Plaintiff’s and Defendants’ Roles at DOCCS

DOCCS is “an executive agency of the State of New York charged with, inter alia, the
oversight and administration of the state prison system and community supervision within the

1
By Order entered on August 10, 2022, this Court granted in part a motion to dismiss the following claims asserted
in the Complaint: Plaintiff’s Equal Protection, N.Y. Lab. Law § 741, and N.Y. Civ. Serv. Law § 75-b claims, and
Plaintiff’s claims against Defendants DOCCS, former DOCCS Deputy Commissioner and Chief Medical Officer Carl
Koenigsmann and DOCCS Nurse Director Betty M. Parkmond, R.N. (Dkt. No. 26). Plaintiff sought leave to file an
amended complaint, which the Court granted in part, with respect to the new allegations as to Defendant Parkmond.
(Dkt. No. 37).

The facts, which are undisputed unless otherwise noted, are drawn from Defendants’ Rule 56.1 Statement of Material
Facts, (Dkt. No. 92-8), and Response to Plaintiff’s Statement of Material Facts, (Dkt. No. 98-2), as well as Plaintiff’s
Rule 56.1 Amended Statement of Material Facts, (Dkt. No. 94), and Response to Defendants’ Statement of Material

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State.” (Dkt. No. 92-8, ¶ 2). Salvana, a licensed medical doctor, became the Medical Director at
Walsh Regional Medical Unit (RMU) in 2014. (Dkt. No. 98-2, ¶¶ 2, 10). 3 Walsh RMU is a
maximum-security medical facility within the Mohawk Correctional Facility, “which provides
medical services and treatment to incarcerated individuals with serious and chronic medical
conditions requiring intensive treatment.” (Id. ¶ 11). Each patient at Walsh RMU is assigned a
medical team comprised of a clinician, nurses, and other appropriate staff, who meet weekly to
discuss patient care and make decisions regarding patient treatment, “including medication
decisions.” (Id. ¶¶ 12–14). Plaintiff testified that in addition to his other duties as the Medical
Director, he managed the care of the twenty or thirty sickest patients. (Dkt. No. 93-2, at 73).
As a Regional Medical Director (RMD) with DOCCS, Defendant David S. Dinello, M.D.
inter alia managed physicians at DOCCS facilities, reviewed specialty requests, reviewed and
created medical policies, took emergency provider telephone calls, and directly supervised
Plaintiff with respect to medical issues arising from his position. (Dkt. No. 92-8, ¶¶ 13–17).
When Plaintiff’s tenure at Walsh RMU began, Defendant Patricia N. Henderson, R.N. was the
Director of Nursing in the Walsh RMU, but she was promoted to acting Deputy Superintendent
of Health (DSH) at Mohawk in August 2017 and to Mohawk DSH in January 2018. (Id. ¶¶ 20,
22–23). As DSH, Henderson was charged with, inter alia, administering and supervising the
medical facilities and ensuring compliance with DOCCS policies. (Id. ¶¶ 26–27). Defendant
Betty M. Parkmond, R.N. was a Registered Nurse Supervisor 1 at Walsh RMU until July 2019

Facts, (Dkt. No. 99-1), to the extent the facts are well-supported by pinpoint citations to the record, as well as the
exhibits attached thereto and cited therein. The facts are construed in the light most favorable to the non-moving party.
See Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
Plaintiff previously worked for DOCCS as a part-time physician at Mid-State Correctional Facility from 2003 to
2005, and at Walsh Regional Medical Unit from 2005 to 2011. (Dkt. No. 98-2, ¶¶ 7–9). He left DOCCS in 2011 and
returned to Walsh RMU in 2014. (Id. ¶¶ 9–10).
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3

when she was promoted to Director of Nursing at Walsh RMU. (Id. ¶¶ 29–30). In her latter role,
she was charged with administration and management of nursing staff at Walsh RMU. (Id. ¶ 31).
B.

The Medications With Abuse Potential Policy

Health Care Services Policy 1.24, otherwise known as the Medications With Abuse
Potential (“MWAP”) Policy was a medical services policy in effect at DOCCS from June 1,
2017, until February 8, 2021. (Id. ¶ 34). The goal of the policy was to address problems with
addiction within DOCCS by assuring that addictive medications were only prescribed to
incarcerated individuals when medically necessary. (Id. ¶ 36). In practice, the policy required
that prescribers document the need for the use of medications with abuse potential and seek the
approval of an RMD when prescribing medications with abuse potential, including opiates,
benzodiazepines, all controlled substances listed in schedules two through four of the Controlled
Substances Act, and certain noncontrolled substances such as pregabalin and gabapentin. (Id. ¶¶
40, 42, 44). Defendant Dinello was “involved in the development and implementation of the
MWAP policy,” (Dkt. No. 98-2, ¶ 35), and according to Plaintiff, he was the “principal author.”
(Id.). On September 10, 2018, a revised MWAP Policy was issued that still required providers to
document the need for use of medications with abuse potentials and seek approval for their use.
(Dkt. No. 92-8, ¶¶ 59, 61).
C.

Salvana’s Opposition to the Policy

Salvana was opposed to the MWAP Policy, and complained to administrators at Walsh
RMU, Mohawk, and DOCCS’ central office. (Id. ¶¶ 68–70). On July 7, 2017, Plaintiff emailed a
complaint from his DOCCS email account directly to then DOCCS Chief Medical Officer
Koenigsmann, 4 Mohawk Superintendent Gonyea, then Deputy Superintendent Tousignant, and

Dr. Carl Koenigsmann preceded Defendant Dr. John N. Morley as Chief Medical Officer of DOCCS. (Dkt. No. 982, ¶ 26). The CMO manages DOCCS’ operations relating to the provision of medical services and develops, approves,
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Defendant Henderson. (Dkt. No. 93-19, at 2). In that email, Plaintiff detailed Defendant
Dinello’s denial of MWAP medications for a specific patient and explained why that patient
needed the medications. (Id.). Plaintiff then wrote:
I have refused to stop these two medications as they are essential
for this patient. I also don’t need help in managing these
medications given the extensive training I had on the pain service
at Yale University Medical Center. This is not the only patient I
manage that Dr Dinello has refused to approve needed medication
on. These patients are now asking for there [sic] problem lists
knowing there are attempts to stop essential medication. They are
likely going to bring litigation and perhaps reports of denial of
needed medication to the Board of Medical Examiners. If a
medication is denied, I will continue to order it if there are no
alternatives, as I know what is best for my patients whom I am in
contact with on a daily basis. Your attention to this matter is
needed ASAP.
(Id.). That same day, Koenigsmann replied to Plaintiff, copying only Gonyea, “You will be
hearing from Dr. Dinello to discuss a reasonable pain management program for this [patient], I
concur with your concerns.” (Id.). On July 10, 2017, Plaintiff replied to Koenigsmann, copying
Gonyea, Tousignant, and Henderson, and stating:
My concerns are not only for this patient but the many other
inmates at Walsh who have very complicated histories and are
among the most difficult to manage patients in DOCCS. . . .
Several [Walsh inmates] are hinting at litigation involving
consulting specialists recommending medications that are being
denied. . . . I again am asking that the Walsh RMU be exempt from
this prior approval policy given the nature of and number of
patients we take care of.
(Id.). That same day, Koenigsmann replied to Plaintiff, copying only Dinello, “We will not be
exempting the RMU from the MWAP policy.” (Id.).

and promulgates directives, policies, and procedures relating to medical care of incarcerated individuals at DOCCS
facilities. (Dkt. No. 92-8, ¶¶ 7, 10; Dkt. No. 99-1, ¶¶ 7, 10).

5

Later that month, on a bi-weekly call with the Office of the Commissioner of DOCCS,
Superintendent Gonyea raised concerns about the MWAP Policy, and Associate Commissioner
Charles F. Kelly asked him to provide some examples. (Dkt. No. 93-4, at 47). Plaintiff wrote a
memorandum outlining eight examples of inmates with medical issues whose medications were
denied. (Id. at 48–49). Plaintiff stated that “[t]he MWAP approval process is demeaning to the
staff, interferes with good patient care and causes patients to undergo needless tests and
consultations. The end point is poor patient care and potential litigation by inmates.” (Id.).
Gonyea sent the memorandum to Associate Commissioner Kelly in an email, stating, “I am sorry
to have to bring this to the Commissioner’s attention but I don’t feel we have gotten anywhere
when we addressed these concerns with Health Services.” (Id. at 47). Associate Commissioner
Kelly asked Assistant Commissioner Joan Smith, who reported to the CMO and assisted in
overseeing healthcare at DOCCS facilities, to review the memorandum with Koenigsmann and
provide comments before he would submit the memorandum to the Commissioner. (Id.; Dkt. No.
94, ¶ 27). Koenigsmann then emailed Dinello and asked him to comment on each of the
examples so Koenigsmann could respond to the inquiry. (Dkt. No. 93-4, at 47.). Dinello
subsequently emailed Plaintiff and asked him to provide specific DIN numbers 5 for each of the
examples so that Dinello could “look into it.” (Id.). Neither party has proffered an email reply
from Plaintiff providing that information. Plaintiff contends that he never received a response
from the Commissioner’s office, nor from Koenigsmann or Dinello, and that he is unaware
whether the Commissioner’s office investigated the matter further. (Id. ¶ 23).

A DIN number is an internal number used to identify an individual while in the custody of the Department of
Corrections and Community Supervision. About the Parolee Lookup Glossary, N.Y. Dep’t of Corr. & Cmty.
Supervision, https://publicapps.doccs.ny.gov/ParoleeLookup/About?form=glossary (last visited Feb. 27, 2025).

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On August 11, 2017, Dinello emailed Salvana, copying Gonyea, Henderson, and another
DOCCS employee stating:
I have been informed by multiple sources that you are refusing to
follow [the MWAP Policy]. I have been instructed by Dr.
Koenigsmann to issue a Direct Order that you follow approved
DOCCS Policy. Your compliance is expected. Actions that are out
of compliance to the Direct Order of following [the MWAP Policy]
will be met with the necessary actions. You can contact me at any
time if you have questions and concerns regarding the Policy. I am
always open to feedback and invite healthy collegial dialogue. Let
me know if you have any questions.
(Dkt. No. 93-20, at 2).
On August 14, 2017, Dinello emailed Henderson, copying Plaintiff and another DOCCS
employee, and stating that he “received the summary of concerns” that were raised regarding the
MWAP Policy at a meeting on August 9, 2017 between Deputy Superintendents of Health and
Directors of Nursing. (Dkt. No. 93-4, at 51–52; Dkt. No. 92-8, ¶¶ 20, 30). Dinello added, “Let
me know when you are all available to meet and discuss the issues.” (Dkt. No. 93-4, at 51–52).
Neither party has proffered an email reply.
On September 6, 2017, Plaintiff emailed Gonyea and Henderson about two patients
whose medication had been stopped, and further stated that an attorney had reached out to
another doctor “inquiring why medication recommended by a consultant was not being given.”
(Dkt. No. 92-4, at 21–22). Plaintiff concluded, “I believe Dr. Dinello is trying to create statistics
that he can somehow use in his favor, all at the expense of practicing good medicine. This policy
created by Dr. Dinello has to stop before it creates bigger problems.” (Id. at 22). That same day,
Gonyea forwarded Plaintiff’s email to DOCCS Acting Commissioner Anthony Annucci,
Koenigsmann, and Associate Commissioner Kelly as an example of Gonyea’s concerns about
“providing appropriate care and avoiding unnecessary legal issues.” (Id. at 21). Gonyea asked

7

Dr. Koenigsmann to visit Walsh to meet with the doctors and see the operation of the RMU.
(Id.). Later that day, Koenigsmann replied just to Gonyea and copied Dinello, stating “I am
aware of the issues and concerns raised by your provider staff. I am also aware that Dr. Salvana
has refused to speak to Dr. Dinello regarding his cases and MWAP process. I think that is the
area that needs to be addressed first and foremost.” (Id.). Dinello responded that day to
Koenigsmann and Gonyea, stating that Dinello “personally went to Mohawk CF.” (Id. at 20).
Dinello stated that the first patient in Plaintiff’s email is “stable” and that the second patient
“should be able to return to Mohawk CF without a problem.” (Id.). Dinello noted that he asked
for the letter from the lawyer, and emphasized that he had “no ulterior motive regarding
MWAP”; “that the MWAP Policy was not created to disrespect [Plaintiff] or any other
provider”; and that he was “always available for discussion” and “more than happy to see the
patients in person when necessary.” (Id.).
On October 26, 2017, Plaintiff sent a letter via email from his DOCCS email account to
Koenigsmann, Gonyea, Henderson, Tousignant, and two other people within DOCCS. (Dkt. No.
93-4, at 54). The letter, addressed to Koenigsmann, detailed medical issues concerning seven
patient cases who had medicine denied. (Id. at 55-56). Salvana stated:
I am contacting you before your planned visit on November 1, to
let you know that the MWAP Policy at Mohawk and Walsh RMU
continues to create significant problems in the management of our
patients and in administering proper community standards of care.
. . . It has been and continues to be very demeaning to continually
have to request MWAP drugs only to have Dr. Dinello deny them.
. . . There are many other examples and the denial of medication to
treat pain in these patients violates the community standard of care.
If you disagree with this then perhaps we can consult an outside
agency, who could reassure us that we are giving proper care.
(Id.). Later that day, Henderson sent Plaintiff an email, copying Gonyea, informing Plaintiff that
his correspondence was “totally inappropriate” and “[q]uite frankly, embarrassing” and that

8

Plaintiff should have sent the letter to Mohawk Superintendent Gonyea first for approval. (Dkt.
No. 92-2, at 9). In her declaration, Henderson explains that Plaintiff’s letter “was not against
policy” but that it “undermin[ed] Gonyea’s efforts to address Plaintiff’s concerns about the
MWAP policy” “given [the] tone.” (Dkt. No. 92-1, ¶ 37). Henderson further explains that she
sent the email to Plaintiff at Gonyea’s direction, and that Gonyea was upset because he had
previously instructed Plaintiff to obtain his review and approval on any correspondence to
Koenigsmann. (Id. ¶¶ 38–39). 6
On October 27, Koenigsmann responded, copying inter alia Dinello, Gonyea, and
Associate Commissioner Kelly, thanking Plaintiff for the update and stating,
[W]e are coming to the facility to . . . have an opportunity to speak
to you and the providers regarding the MWAP program and your
concerns on Wed 11/1. Dr. Dinello will be attending. I look
forward to hearing your concerns and opening a dialog with Dr.
Dinello. The meeting on Wed is not appropriate for specific patient
issues[,] rather a more general discussion regarding the MWAP
policy.
(Dkt. No. 92-4, at 24). Later that day, Gonyea emailed Koenigsmann directly apologizing that
Plaintiff sent the letter; Gonyea said that Plaintiff “was told by Acting DSH Henderson not to
send you any further e mails on this subject unless I approved them. We will be dealing with him
on that matter.” (Id.).

Plaintiff has asserted that Henderson’s statements are inadmissible hearsay not supported by the record. (Dkt. No.
99-1, ¶¶ 80–81). The Court notes that Plaintiff’s first email, on July 7, 2017, was to Koenigsmann and nothing in the
record suggests that Plaintiff was criticized or warned against emailing Koenigsmann at that time. However, according
to Henderson, Gonyea asked Henderson to direct Plaintiff to obtain approval before submitting any additional
complaints on or about October of 2017 because Gonyea was attempting to address issued raised by Plaintiff with
DOCCS administrators in Albany. (Dkt. No. 92-1, ¶¶ 34–35). Gonyea himself told Koenigsmann in an email on
October 27, 2017 that Henderson had instructed Plaintiff not to send further emails to Koenigsmann unless Gonyea
approved them. (Dkt. No. 92-4, at 24). Because it appears that Henderson’s statements could “be presented in a form
that would be admissible in evidence,” the Court can consider them on summary judgment. Fed R. Civ. P. 56(c)(2);
see also Figueroa v. Mazza, 825 F.3d 89, 98 n.8 (2d Cir. 2016) (“[A]ny evidence considered on summary judgment
must be reducible to admissible form.”).
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On November 1, 2017, Plaintiff participated in the November 2017 site visit with
Koenigsmann and Dinello to discuss Plaintiff’s concerns with the MWAP Policy. (Dkt. No. 982, ¶ 54). Plaintiff states that despite Koenigsmann’s contention that the meeting was not an
appropriate forum to discuss specific patients, Plaintiff did discuss the patients identified in the
letter in the meeting as well. (Dkt. No. 93-4, ¶ 25). No immediate changes were made to the
MWAP Policy after the meeting. (Dkt. No. 98-2, ¶ 56).
On December 26, 2017, Dinello emailed Walsh RMU providers, including Plaintiff,
explaining that he recently visited the Walsh RMU and found that the MWAP Policy was not
being followed. (Dkt. No. 92-4, at 29). Dinello reminded the providers of the need to comply
with the terms of the MWAP Policy and labelled his email an “informal warning.” (Id.). On or
about January 18, 2018, Dinello, Koenigsmann, and Salvana participated in a conference
regarding Salvana’s MWAP Policy concerns. (Dkt. No. 92-8, ¶ 98). As a result of the
conference, Salvana and Dinello reached a compromise about implementation of the MWAP
Policy at Walsh RMU, which was memorialized in an email sent by Plaintiff, dated January 19,
2018. (Id. ¶¶ 99–100).
D.

Enforcement of the Policy

After an incident in June 2019 where Salvana and Henderson disagreed about providing
an MWAP medication to a patient, Salvana wrote a memorandum detailing his version of the
events. (Dkt. No. 98-2, ¶¶ 63–70). Plaintiff contends that in response to his report, Henderson
locked him out of the facility and demanded he go to her office. (Id. ¶ 71). In her office, Plaintiff
alleges that she berated him for using an MWAP medication and filing a complaint about her.
(Id. ¶ 72). Defendants deny the lock-out allegations and Plaintiff’s characterization of the
meeting. (Id. ¶¶ 71–72). According to Defendants, Mohawk Superintendent John C. Harper (who
had replaced Gonyea) requested a meeting with Henderson and Salvana, where he raised
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concerns that Salvana had been behaving disrespectfully towards Henderson. (Dkt. No. 92-8, ¶¶
101–02). According to Defendants, Plaintiff subsequently chose to go to his vehicle to reflect on
his conduct. (Id. ¶ 104). Defendants state that Plaintiff was not locked out of the facility and
returned to Walsh RMU later that day to continue with his work duties. (Id. ¶¶ 105–08).
Plaintiff further alleges that Henderson and Nurse Director Betty Parkmond ordered
nurses to withhold assistance from him for several of his patients. (Dkt. No. 98-2, ¶ 74). Plaintiff
contends that the nurses complied with those orders and that he documented these events in a
September 30, 2019 letter. (Id.). Defendants deny these allegations, and instead claim that
Parkmond gave specific instructions to the nursing staff, following an incident, not to assist
Plaintiff “in allowing incarcerated individuals to use sharps or needles, or to administer their own
medication intravenously” for the purposes of “preventing nursing staff from violating clear
directives and policy prohibiting such conduct.” (Dkt. No. 92-8, ¶¶ 148–59). Defendants allege
that Parkmond did not otherwise direct any nursing staff to withhold assistance from Plaintiff
with any otherwise appropriate task. (Id. ¶ 160).
E.

Plaintiff’s Departure from Walsh RMU

On or about September 2019, Defendants contend that Plaintiff, on his own accord,
contacted Dinello asking for assistance in transferring out of Walsh RMU to another facility. (Id.
¶ 166, Dkt. No. 98-2, ¶ 79). Plaintiff contends, however, that he was “removed and forced to
leave Walsh RMU” to “escape an environment that needlessly prolonged patient suffering and
retaliated against him for trying to prevent it.” (Dkt. No. 94, ¶ 79). Plaintiff refers to an email
Dinello sent to John Morley, the then Deputy Commissioner and Chief Medical Officer for
DOCCS, about a year after the transfer stating that “Dr. Salvana was ‘removed’ from the Walsh
RMU.” (Id. ¶ 80, Dkt. No. 93-23, at 2; Dkt. No. 92-8, ¶ 3).

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Dinello arranged for Plaintiff to obtain a physician position at Five Points Correctional
Facility, in Romulus, New York, which Plaintiff opted not to accept. (Dkt. No. 92-8, ¶¶ 169–70).
Dinello then assisted Plaintiff in obtaining a part-time physician position at Southport
Correctional Facility, in Southport, New York, a facility which was over two hours away from
Plaintiff’s home. (Id. ¶ 171; Dkt. No. 94, ¶ 82). According to Defendants, Plaintiff chose to
accept the position, (Dkt. No. 92-8, ¶ 172), but according to Plaintiff, he was “forced” to take the
position. (Dkt. No. 94, ¶ 82).
After his transfer to Southport, Plaintiff subsequently contacted Dinello and Morley about
his interest in a Clinical Physician position at Cayuga Correctional Facility that would be open
upon the expected retirement of a physician employed at that facility. (Dkt. No. 92-8, ¶¶ 191,
202). Plaintiff completed and filed the necessary paperwork seeking the transfer. (Dkt. No. 94, ¶
84). Defendants contend that Dinello supported Plaintiff’s decision, but made no promises as to
whether a physician position would be made available to him. (Dkt. No. 92-8, ¶¶ 192–93).
According to Defendants, upon the retirement of the Cayuga physician, the medical staff at
Cayuga voiced their preference that the position be switched to a nurse practitioner position to
allow a nurse practitioner then employed at Cayuga part-time to work at the facility full-time.
(Id. ¶ 196). Defendants contend that Dinello did not see a reason to overrule the preference
expressed by the medical staff at Cayuga, and so he did not object and instead notified Plaintiff
of the change. (Id. ¶¶ 197–98). Defendants contend that Morley deferred to Cayuga facility
administrators and Dinello about converting the position, and approved the position change
based on the facility’s request. (Id. ¶¶ 204, 206–08). According to Defendants, because there was
no longer an open physician position, Plaintiff was not eligible to transfer. (Id. ¶ 206).

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Plaintiff contends, on the other hand, that Dinello, Henderson, and Morley conspired to
prevent his transfer by deliberately changing the position from a physician to a nurse
practitioner, that Dinello had the authority to transfer him, and that there was an open physician
position from the time the physician retired in February 2020 until another doctor was hired
because the new nurse practitioner position did not result in the replacement of a physician. (Dkt.
No. 99-1, ¶¶ 192–201; Dkt. No. 94, ¶ 89). In support of Plaintiff’s contentions, Plaintiff cites to a
statement Dinello made in his deposition that “I could’ve gotten him that job if he really wanted,
if it was a good fit.” (Dkt. No. 99-1, ¶ 197 (quoting Dkt. No. 93-11, at 272)). Plaintiff further
offers that Dinello sent an email to the Cayuga Superintendent stating:
I have a Physician by the name of Michael Salvana MD who would
like to take over [the] Clinical Physician 2 position . . . Unfortunately
there have been a few issues with his employment . . . I would
actually like to change [the] Full Time Clinical Physician 2 Item into
a Family or Adult [Nurse Practitioner] Item. . . . If we Post the
Clinical Physician 2 Item, Dr. Salvana will ask to transfer into the
Position and I don’t believe we will find a local Physician willing to
take the position. I think it would be best to just change the Item.
(Dkt. No. 94, ¶ 90; Dkt. No. 93-30, at 2–3).
Plaintiff alleges that his four-hour per day commute to Southport was untenable, and so
he was “forced to resign,” which according to Plaintiff, meant that “Dr. Dinello successfully
forced him out of DOCCS.” (Dkt. No. 94, ¶¶ 91–92). Plaintiff retired from state service in April
2020 because there was no viable physician position available. (Id. ¶ 93). A physician was hired
at Cayuga in October 2020. (Id. ¶ 94).
III.

THE MOTIONS FOR SUMMARY JUDGMENT
A.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all submissions taken together “show that there is no genuine issue as to any material fact and

13

that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A
fact is material if it “might affect the outcome of the suit under the governing law,” and is
genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549,
553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248).
Where, as here, both parties have filed motions for summary judgment, “the court must
evaluate each party’s motion on its own merits.” Heublein, Inc. v. United States, 996 F.2d 1455,
1461 (2d Cir. 1993) (quoting Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314 (2d
Cir. 1981)). The moving party bears the initial burden of demonstrating “the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323. The moving party may meet this
burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d
253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving
party fails to “‘come forth with evidence sufficient to permit a reasonable juror to return a verdict
in his or her favor on’ an essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010))). If the moving party meets this burden, the nonmoving
party must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248, 250; see also Celotex, 477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d
Cir. 2009). In ruling on a motion for summary judgment, “[t]he role of the court is not to resolve
disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v.

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Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54,
60 (2d Cir. 2010)).
“When ruling on a summary judgment motion, the district court must construe the facts
in the light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves
create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
B.

Discussion
1.

First Amendment Retaliation

To establish First Amendment retaliation, “the plaintiff must demonstrate that ‘(1) his or
her speech or conduct was protected by the First Amendment; (2) the defendant took an adverse
action against him or her; and (3) there was a causal connection between this adverse action and
the protected speech.’” Agosto v. N.Y. City Dep’t of Educ., 982 F.3d 86, 94 (2d Cir. 2020)
(quoting Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018)). Both parties argue that
summary judgment is warranted on the question of whether Plaintiff engaged in speech protected
under the First Amendment. (Dkt. No. 92-9, at 7–10; Dkt. No. 93-34, at 11–16).

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a.

Protected Speech

“The speech of a public employee is protected by the First Amendment when the
employee speaks as a citizen on a matter of public concern, rather than pursuant to his
employment responsibilities.” Specht v. City of New York, 15 F.4th 594, 600 (2d Cir. 2021)
(citing Garcetti v. Ceballos, 547 U.S. 410, 420–21 (2006)). Thus, as a public employee, Plaintiff
must demonstrate that he “engaged in citizen speech,” in other words, that he “spoke as a private
citizen,” and that “the speech at issue was on a matter of public concern.” See Montero, 890 F.3d
at 399; Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015).
i.

Matter of Public Concern

“Whether speech is on a matter of public concern presents a question of law that takes
into consideration the content, form, and context of a given statement.” Specht, 15 F.4th at 600
(citing Montero, 890 F.3d at 399). “Speech deals with matters of public concern when it can be
fairly considered as relating to matters of political, social, or general interest to the community or
value and concern to the public.” Id. (citing Snyder v. Phelps, 562 U.S. 443, 453 (2011)). As the
Second Circuit has explained:
To identify matters of public concern, “we consider the motive of
the speaker, cognizant that speech on a purely private matter does
not pertain to a matter of public concern and, conversely, that an
individual motivated by a personal grievance can simultaneously
speak on a matter affecting the public at large[.]”
Id. (quoting Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014)).
Defendants seemingly argue that Plaintiff’s speech was not made on a matter of public
concern, because his statements were matters only of personal interest relating to internal
policies and should be viewed as personal employee grievances. (Dkt. No. 92-9, at 7).
Defendants assert that Plaintiff’s complaints “focused on the fact that Plaintiff thought it was
demeaning to him professionally that he was required to seek approval from Dinello for the use
16

of MWAP medications and that he disagreed with Dinello’s denials.” (Dkt. No. 92-8, ¶ 72).
Plaintiff argues that his speech was on a matter of public concern, because it pertained to patient
suffering, the standard of care, and potential litigation and ethics complaints. (Dkt. No. 99, at
11). The Court agrees.
Although some of Salvana’s complaints included statements describing the demeaning
effects of the MWAP policy as implemented by Defendant Dinello, (Dkt. No. 93-4, at 48–49,
55), Plaintiff’s speech clearly extended beyond personal grievances and interests to focus on
patient care. Speech implicating “the health, welfare and safety of severely disabled individuals
in the care of the state[ ] are matters of importance to the public.” McLaughlin v. Pezzolla, No.
06-cv-376, 2010 WL 56051, at *9, 2010 U.S. Dist. LEXIS 232, at *30 (N.D.N.Y. Jan. 4, 2010).
Here, Plaintiff’s speech about the health of inmates in the care of the state who had some of the
“most complicated and difficult [medical] cases” was a matter of public concern. (Dkt. No. 94, ¶
11); see Dillon v. Suffolk County Dep’t of Health Servs., 917 F. Supp. 2d 196, 208 (E.D.N.Y.
2013) (finding complaints by a doctor at a correctional facility that inter alia necessary
medications were not being prescribed to be matters of importance to the public because they
implicated the health, welfare and safety of individuals in the care of the state). Plaintiff’s
“concern for his patients’ well-being and for the general workings of the [Walsh RMU]” based
on his “concern as a professional” was therefore a matter of public concern. DiMarco v. Rome
Hosp., No. 88-cv-1258, 1991 WL 336000, at *1, 8, 1991 U.S. Dist. LEXIS 16603, at *3, 24–25
(N.D.N.Y. June 29, 1991) (finding complaints raising “questions about . . . the professional
conduct and medical judgment of several of his colleagues and the nursing staff, the Hospital’s
overall patterns and practices, and the leadership and competence of those individuals who were
responsible for managing the Hospital” to be matters of public concern).

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ii.

Speaking as a Private Citizen

When determining whether a public employee spoke as a private citizen, courts ask two
questions: “(A) did the speech fall outside of the employee’s ‘official responsibilities,’ and (B)
does a civilian analogue exist?” Matthews, 779 F.3d at 173 (citing Weintraub v. Bd. of Educ. of
City Sch. Dist. of City of N.Y., 593 F.3d 196, 203–04 (2d Cir. 2010)). Within this inquiry,
“[a]lthough the presence or lack of a civilian analogue may be of some help in determining
whether one spoke as a citizen, ‘[t]he critical question . . . is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.’” Montero, 890 F.3d at 397–98 (quoting
Lane v. Franks, 573 U.S. 228, 240 (2014)). Defendants argue that Plaintiff’s speech fell squarely
within his official responsibilities and that he has failed to allege a civilian analogue. (Dkt. No.
92-9, at 8). Plaintiff, on the other hand, argues that he was speaking as a private citizen. (Dkt.
No. 93-34, at 15).
(i) Official Responsibilities
Courts have adopted a “functional approach” to assessing whether speech falls outside of
an employee’s official responsibilities, focusing on the employee’s “actual, functional job
responsibilities.” See Matthews, 779 F.3d at 173–74. Because of the fact-intensive nature of this
inquiry, it is not subject to a bright-line rule: courts look to “the nature of the plaintiff’s job
responsibilities, the nature of the speech, and the relationship between the two.” Id. at 173
(quoting Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012)). Under this functional approach,
formal job descriptions are relevant but not dispositive, because:
Formal job descriptions often bear little resemblance to the duties
an employee actually is expected to perform, and the listing of a
given task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties for First
Amendment purposes.

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Garcetti, 547 U.S. at 424–25. In addition to a plaintiff’s job description, courts have considered
“the persons to whom the speech was directed,” “whether the speech resulted from special
knowledge gained through the plaintiff’s employment,” “whether the speech occurs in the
workplace”; and “whether the speech concerns the subject matter of the employee’s job.”
Frisenda v. Inc. Vill. Of Malverne, 775 F. Supp. 2d 486, 506 (E.D.N.Y. 2011) (citation omitted).
Here, the parties dispute Plaintiff’s official duties. Henderson provided a declaration
stating that Plaintiff was charged with, inter alia, “the coordination and direction of treatment at
Walsh RMU; the provision and supervision of treatment to incarcerated individuals under the
care of the Walsh RMU; the review of program standards and objectives to determine their
appropriateness; and the general development, implementation and administration of services at
the Walsh RMU.” (Dkt. No. 92-1, ¶ 13). She further stated that “[i]t was within the
responsibilities of his official position to weigh in on all aspects of provision of treatment to his
patients, which included comments or concerns raised by implementation of policies by DOCCS
medical staff.” (Id. ¶ 14). In Plaintiff’s 2018 and 2019 evaluations, Henderson “encouraged
[Plaintiff] to continue evaluating and discussing medical care with his superiors” and praised his
“initiative to advocate for health services staff and Walsh RMU admitted inmate-patients.” (Dkt.
No. 98-2, ¶ 20; Dkt. No. 93-4, at 35, 40). In his declaration Dinello stated that “[a]lthough
[Plaintiff] was not technically charged with the creation and review of policy, he, as well as other
medical directors, was encouraged and, indeed, expected to comment on or raise to
administrators issues affecting patient care, including policies and procedures.” (Dkt. No. 92-3, ¶
34).
Plaintiff, however, denies that it was part of his duties “to comment or raise concerns
about the implementation of DOCCS’ policies” and refers the Court to his Description of

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Activities and Tasks under the Title Clinical Physician 3 for a list of official duties. (Dkt. No. 991, ¶¶ 65–67). Under this description, prepared by Plaintiff’s supervisor, twenty-five percent of
his time was spent “[e]nsur[ing] high quality inmate health care by evaluating and discussing the
medical care provided . . .” (Dkt. 93-32, at 2). His remaining responsibilities were (2)
“[m]aintains professional relationships within the facility and outside in the community,” (3)
“[a]rranges on-call coverage,” (4) “[e]ncourages staff growth through the promotion of in-service
education,” (5) “[e]valuates employee performance,” (6) “[c]ompletes grievances and inmate
correspondence investigations and submits appropriate documentation in a timely manner,” and
(7) “[e]valuate eligibility of inmates for medical parole and Full Board Case Review.” (Id.). In
Plaintiff’s deposition, he testified that his primary job duties were to evaluate and supervise the
other doctors and nurse practitioners. (Dkt. No. 93-2, at 72). He also testified that although the
prior Medical Director did not take patients, Plaintiff decided to do so and managed the care of
the twenty or thirty sickest patients. (Id. at 73).
In any event, courts are to use a “functional approach” in evaluating an employee’s job
duties. Matthews, 779 F.3d at 173; Weintraub, 593 F.3d at 203. The Second Circuit has held that
speech is pursuant to a public employee’s official job duties “even though it is not required by, or
included in, the employee’s job description” if the speech is “part-and-parcel of his concerns”
about his ability to “properly execute his duties.” Weintraub, 593 F.3d at 203 (quoting Williams
v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007)) (finding that the public-school
teacher’s concerns about maintaining classroom discipline, an “indispensable prerequisite to
effective teaching,” were “part-and-parcel of his concerns” about his ability to “properly execute
his duties” and were therefore, unprotected). In Matthews, the Second Circuit held that a police
officer’s complaints to precinct commanding officers about a precinct-wide quota system were

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not “‘part-and-parcel’ of his regular job,” and were therefore protected. 779 F.3d at 174. There,
the court found that the officer’s duties did not involve formulating, implementing, or providing
feedback on the policy, because such policy-oriented speech was “neither part of his job
description nor part of the practical reality of his everyday work”; his job did not involve
reporting misconduct or commenting on precinct-wide policy, and he had “no role in setting
policy” nor was he “expected to speak on policy” or “consulted on formulating policy.” Id. The
Second Circuit subsequently reaffirmed that “[u]ltimately, the question, then is whether the
employee’s speech was ‘part-and-parcel of [that person’s] concerns about his ability to execute
his duties.’” Montero, 890 F.3d at 398 (quoting Weintraub, 593 F.3d at 203) (second alteration in
original). In Montero, the court found that a police officer’s complaints at union meetings
qualified as citizen speech because they were made pursuant to the plaintiff’s union role and not
“as a ‘means to fulfill’ or ‘undertaken in the course of performing’ his responsibilities as a police
officer.” Id. at 398–99 (quoting Weintraub, 593 F.3d at 203).
Here, the Court finds that like Weintraub, Plaintiff’s concerns about the MWAP Policy
were “part-and-parcel of his concerns” about his ability to properly execute his duties as Medical
Director, and that Plaintiff’s concerns about the policy’s implementation were indispensable to
his core duty of “[e]nsur[ing] high quality inmate health care.” See 593 F.3d at 203; (Dkt. No.
93-32, at 2). His complaints were “means to fulfill” this duty and undertaken in the course of
performing his responsibilities. Weintraub, 593 F.3d at 203. Although Plaintiff argues that the
policy “had no impact on [his] core job functions” and that he was nevertheless able to “fulfill
his job duties of evaluating and treating patients,” (Dkt. No. 93-34, at 15), it is well-documented
that the policy had significant impacts on Plaintiff’s ability to treat patients as he saw fit, (see,
e.g., Dkt. No. 94, ¶¶ 62–73). That Plaintiff’s communications or concerns with the MWAP

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Policy were part and parcel of his ability to do his job is also supported by the fact that “[a] few”
other providers raised similar communications or concerns. (Dkt. No. 93-11, at 202).
Thus, while Plaintiff’s job description did not include formulating, implementing, or
providing feedback on DOCCS policies, here unlike in Matthews, Plaintiff’s speech concerned a
policy that interfered with his ability to do his job – i.e. to provide quality patient care, and
following Plaintiff’s complaints, DOCCS officials responded to and were engaged in considering
the policy’s impact on patient care. Plaintiff’s involvement in policy was evidenced by the
compromise reached by Plaintiff and Dinello after the January 2018 conference with respect to
MWAP implementation at Walsh RMU. (Dkt. No. 92-8, ¶¶ 98–99). Furthermore, Plaintiff’s
speech was only made internally within DOCCS, was sent through DOCCS platforms, and raised
issues that Plaintiff only came to learn as part of his duties and responsibilities as Medical
Director. See Frisenda, 775 F. Supp. 2d at 506–07 (finding that these factors, among others,
rendered the plaintiff’s speech unprotected).
That Plaintiff complained to higher levels of supervision beyond his direct supervisor
does not alter the analysis: his complaints stayed within the chain-of-command, and were sent to
those responsible for ultimately ensuring that incarcerated individuals in DOCCS custody
received proper medical care. See id. at 508–09. The fact that Henderson admonished Plaintiff
regarding his October letter to Koenigsmann, (Dkt. No. 92-2, at 9), and Gonyea apologized to
Koenigsmann about Plaintiff’s letter, (Dkt. No. 92-4, at 24), does not change the Court’s view
that Plaintiff was speaking as part of his public job and not as a citizen. Plaintiff sent his first
documented complaint, on July 7, 2017, to Koenigsmann, and Koenigsmann responded directly
to Plaintiff. (Dkt. No. 93-19, at 2). The fact that Plaintiff’s supervisor at Mohawk directed
Plaintiff not to speak directly with Koenigsmann after Superintendent Gonyea himself got

22

actively involved by raising Plaintiff’s complaint to the level of an Associate Commissioner of
DOCCS does not change the fact that Plaintiff’s complaints were part-and-parcel of his concerns
about his ability to properly do his job. Plaintiff sent the October letter to Koenigsmann before
the planned visit and Koenigsmann and Dinello met with Plaintiff shortly thereafter at an official
site visit to have “a general discussion regarding the MWAP policy.” (Dkt. No. 93-4, at
54).Thus, while breaking the chain-of-command may, in some instances, evince that a plaintiff is
not speaking pursuant to his duties, see Pisano v. Mancone, No. 08-cv-1045, 2011 WL 1097554,
at *11, 2011 U.S. Dist. LEXIS 28864, at *37 (S.D.N.Y. Mar. 18, 2011), it does not do so here,
where Plaintiff had been and continued to be engaged in communications with Koenigsmann
regarding the MWAP policy. Cf. Gusler v. City of Long Beach, No. 10-cv-2077, 2016 WL
11493644, at *19, 2016 U.S. Dist. LEXIS 206864, at *56 (E.D.N.Y. Aug. 4, 2016) (finding that
plaintiff, at least theoretically, spoke as a citizen when he had been instructed not to comment on
matters of policy or misconduct by his superiors and commented anyway).
(i) Civilian Analogue
“Speech has a ‘relevant civilian analogue’ if it is made through ‘channels available to
citizens generally.’” Matthews, 779 F.3d at 175 (quoting Jackler v. Byrne, 658 F.3d 225, 238 (2d
Cir. 2011)). In Matthews, the Second Circuit found that a police officer’s speech had a civilian
analogue when, rather than going through formal internal grievance procedures, he “went
directly to the Precinct commanders, with whom he did not have regular interactions and who
had an open door to community comments and complaints.” Id. at 176. The Court noted that
these Precinct commanders attended monthly Community Council meetings, met with members
of the community, and “regularly heard civilian complaints about Precinct policing issues.” Id.;
see also Schoolcraft v. City of New York, 103 F. Supp. 3d 465, 509–10 (S.D.N.Y. 2015) (finding

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on summary judgment that an NYPD officer’s speech had a civilian analogue when he spoke at a
performance evaluation and appeal meeting, but also with the Internal Affairs Bureau and
Quality Assurance Division, noting that any citizen can report wrongdoing to the IAB, and that it
was not clear from the record whether the public can report to the QAD, which would “remain a
question for trial”); cf. Weintraub, 593 F.3d at 204 (finding a teacher’s speech was not protected
when he lodged a union grievance, which is not a channel available to non-employees).
Here, Plaintiff emailed, wrote letters to, and met with various DOCCS officials, including
Superintendent Gonyea, RMD Dinello, and Chief Medical Officer Koenigsmann. (Dkt. No. 94,
¶¶ 47–50, 54). The record is devoid of any evidence of whether members of the public could
engage in these methods of communications with DOCCS officials, but Gonyea, Dinello and
Koenigsmann were within Plaintiff’s chain of command. (Id. ¶¶ 25 (explaining that Dr. Dinello
was Plaintiff’s immediate supervisor), 26 (explaining that Dr. Dinello reported directly to the
CMO); Dkt. No. 92-8, ¶ 18 (explaining that Plaintiff also reported to administrators at Mohawk,
including Gonyea as the facility superintendent)). Plaintiff asserts that citizens could write to and
have conversations with DOCCS officials, (Dkt. No. 93-34 at 15 n.9), but there is no evidence
that these officials consider complaints from private citizens. Plaintiff also cites to the DOCCS’
grievance procedures for incarcerated individuals, (id.), 7 but complaints submitted though the
grievance process lack a relevant civilian analogue as they are “internal communication[s]
pursuant to an existing dispute-resolution policy” and are therefore not made “through channels
available to citizens generally.” Weintraub, 593 F.3d at 204 (finding that the plaintiff’s union
grievance filing lacked a relevant civilian analogue).
In his reply brief, Plaintiff cites to Paragraph 32 of his Statement of Material Facts, (Dkt. No. 99, at 12), which sets
forth the DOCCS grievance process and cites to DOCCS Directive No. 4040, (Dkt. No. 94, ¶ 32 & n.41). DOCCS
Directive 4040 is entitled “Incarcerated Grievance Program” and its purpose is to resolve grievances by incarcerated
individuals. (Dkt. No. 93-16).
7

24

Without evidence that these officials took public concerns and given that they were
within Plaintiff’s chain of command, the Court finds that there is no civilian analogue for
Plaintiff’s speech. See Ross, 693 F.3d at 307 (“Taking a complaint up the chain of command to
find someone who will take it seriously ‘does not, without more, transform [his] speech into
protected speech made as a private citizen.’” (quoting Anemone v. Metro. Transp. Auth., 629
F.3d 97, 116 (2d Cir. 2011))); Calvelos v. City of New York, No. 19-cv-6629, 2020 WL 3414886,
at *14, 2020 U.S. Dist. LEXIS 109266, at *40 (S.D.N.Y. June 22, 2020) (finding that “intrafacility complaints to the command staff” by a corrections officer lacked a civilian analogue);
Flynn v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 17-cv-2864, 2018 WL 2041713, at
*6, 2018 U.S. Dist. LEXIS 72277, at *15–16 (S.D.N.Y. Apr. 30, 2018) (rejecting plaintiff’s
argument that her complaints were “outside the chain of command” because the official she
complained to was “several levels above [her] at DOCCS,” because the official did not
“entertain[] complaints from private citizens”). Although “the lack of a civilian analogue [i]s not
critical to a decision as to whether [Plaintiff] spoke as a private citizen,” it supports the Court’s
finding that the speech at issue was within the scope of Plaintiff’s duties. See Montero, 890 F.3d
at 398.
Therefore, after carefully considering all of the evidence, the Court finds that the Plaintiff
was speaking as a public employee, and not a citizen. Accordingly, “no First Amendment claim
arises, and that ends the matter.” Caraccilo v. Vill. of Seneca Falls, 582 F. Supp. 2d 390, 405
(W.D.N.Y. 2008). 8 Thus, the Court grants Defendants’ motion for summary judgment and denies
Plaintiff’s motion for summary judgment.

Accordingly, the Court does not evaluate the parties’ arguments about whether Plaintiff suffered an adverse
employment action causally related to his speech, nor does the Court consider Defendants’ arguments regarding the
statute of limitations, appropriateness of injunctive or prospective relief, or qualified immunity.

8

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IV.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s motion for summary judgment (Dkt. No. 93) is DENIED;

and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 92) is
GRANTED and Plaintiff’s amended complaint (Dkt. No. 38) is DISMISSED; and it is further
ORDERED that the Clerk is directed to close this case.
IT IS SO ORDERED.
Dated: March 6, 2025
Syracuse, New York

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